Introduction
A working group to inquire into human rights violations in Jammu and Kashmir comprising Dr. Kamal Mitra Chenoy, Associate Professor, School of International Studies, Jawaharlal Nehru University, New Delhi, as Convenor; Dr. Ambrose Pinto, S.J., Executive Director, Indian Social Institute, New Delhi, and Shri Zafar Iqbal Manhas, columnist and cultural activist, Srinagar, as members; was constituted at the request of the Kashmir Foundation for Peace and Developmental Studies, Srinagar in August 2000. The Group is grateful to Shri Somen Chaudhury for research assistance.
The Group visited Srinagar, Chithisingpora, Pahalgam, Jammu, Akhnoor, Rajouri, Surankote and Poonch, between August 26 and September 3, 2000. It met a wide cross section of officials including in the Army, paramilitary forces and police, citizens from various walks of life, and victims of the violence. We are deeply grateful to our informants who frankly shared their experiences and opinions with us, often despite the fear of the gun. But for them, this report could not have been written. We also record our appreciation of the Kashmir Foundation for Peace and Developmental Studies, Srinagar, which consistently gave unstinted support to our Group, while encouraging us to arrive at independent judgements at every stage. Hence, the views expressed herein are those of the Group, and the responsibility for all opinions as well as any shortcomings in the report is entirely our own.
For informed observers of Jammu and Kashmir, and many of its citizens, little of what this report contains is new. But much of what may seem common knowledge, particularly in the Valley, is not well known in the rest of India. We believe if the Indian public comes to realize the extent of human rights violations in the State, public pressure to curb such violations will mount. But this report is unusual on one specific count. Unlike most human rights reports, it also describes and indicts human rights violations by the militants. While the militants may reject the Indian Constitution and Indian law, they have no moral or legal right to violate the universally recognized canons of international humanitarian law. To the extent they do, they are also violators of human rights and must be criticized as such.
We dedicate this report to the long suffering people of Jammu and Kashmir, with the fervent hope that it may contribute its mite to the ending of this tragedy.
The Political Background
It is clear to any dispassionate observer, that the insurgency in Jammu and Kashmir is the result of the alienation of a substantial section of the population from the Indian state and from their own elected representatives, seen as agents of the former. As is well known, Jammu and Kashmir acceded to the Indian Union under very special circumstances in 1947, with Maharaja Hari Singh's hands being forced by the Pakistani-backed invasion of tribal raiders. To fight whom the maharaja needed the services of the Indian army.
Despite the role of Sheikh Abdullah, in rallying the Kashmiri people to support the accession to India, a suspicious Indian government incarcerated him for most of the 1953 to 1975 period until the Indira-Sheikh accord of 1975. In the interim period, making use of pliable governments elected in elections generally believed to have been rigged in favour of the ruling party, the greater part of the autonomy given to the State under Article 370 as enacted and as existing in 1952, was systematically taken away by successive Union governments.
Most of the remedial steps on the Kashmir issue were administrative. In the policy on Kashmir integrating the State into India remained the ultimate objective. The socio-psychological aspects and the aspirations of the Kashmiri communities until recently have not got prominence in the Kashmir policy. Regional dimensions of the state and various sub-regional aspirations therein have been always tended to be ignored or overshadowed by the priority of national integration.
This has deepened the popular alienation in the Valley and increased anti-Indian sentiments. Though Pakistan continued to support secessionist forces in Kashmir from 1947 onwards, the critical event that led to a major insurgency in the Valley from 1989, is widely believed to be the elections of 1987.
There was a major challenge to the ruling National Conference from a coalition of parties grouped under the Muslim United Front [MUF] in the Valley. Contrary to popular expectations and predictions, the MUF was routed in elections believed to have been massively rigged by the National Conference [NC]. This sharpened popular alienation from both the Union government as well as the major pro-Indian party: the NC, and thus reportedly created the political and social base for the bloody insurgency that persists even today.
The insurgency and counter-insurgency operations by the Army, para-military forces, police and surrendered militants have created a vicious circle of violence in which, according to some estimates, as many as 60,000 people have died. The record of human rights violations is a direct consequence of this bloody, and in part, fratricidal conflict.
Counter-Insurgency Laws: Some Legal Questions
The major Act that governs military action in Jammu & Kashmir is the Armed Forces (Special Powers) Act, 1958 [as amended in 1972]. Human rights activists have long argued that this Act is unconstitutional and violates international humanitarian law. The Supreme Court has, like in the earlier case of TADA, upheld the validity of the law, but in view of the potential abuse of human rights has laid down some detailed guidelines for its use. Nonetheless, we believe this is a ''lawless law" which violates both the Constitution and international law.
The Act gives no precise definition of "disturbed area." The declaration of any area as 'disturbed' under Section 3 is the prerogative of the Governor of the State or the Central Government. The State legislature has absolutely no jurisdiction in the matter, though under the Constitution 'public order' is a State subject [Seventh Schedule, List II, Entry 1]. Under Section 4(a) of the Act, even a non-commissioned officer can order his men to shoot to kill "if he is of the opinion that it is necessary to do so for maintenance of public orderS" This gives very wide discretion to even very junior officers. Similarly, Section 4(b) allows such military personnel to destroy any shelter from which, in his opinion, armed attacks "are likely to be made" or which has been utilised as a hide-out by absconders "wanted for any offense." This latitude has permitted the destruction of large numbers of dwellings and other buildings in the State, including in collateral damage when buildings adjoining the one targeted have been damaged or destroyed.
Section 4(c) of the Act permits the arrest without warrant, with whatever "force as may be necessary" of any person against whom " a reasonable suspicion exists that he is about to commit a cognizable offence." This has provided the basis of indiscriminate arrests, and the use of brutal force including firing against innocent civilians. Section 4(d) authorises the entry and search, without warrant, of any premises to make arrests as sanctioned under Section 4 ©, or to recover any person "believed to be wrongfully restrained or confined," or any property "reasonably suspected" to be stolen property or any arms, ammunition or explosive substance "believed to be unlawfully kept in such premises" For military personnel operating in a culturally alien terrain, 'beliefs' and 'reasonable suspicions' are often wholly unfounded leading to human rights abuses, as we shall see below.
Though Section 5 of the Act explicitly lays down that, "Any person arrested and taken into custody under this Act shall be made over to the office in charge of the nearest police station with the least possible delayS," this has been repeatedly violated. Section 6 exempts Army personnel from prosecution, stating, "No prosecution, suit or legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act." The exemption from prosecution is not only for what is done under this Act, but also for what is "purported to be done."
Experts in the UN Human Rights Committee, which met in Geneva in March 1991, were categorical that this Act is violative of several Articles of the International Covenant on Civil and Political Rights to which India is a signatory. Article 2(3) directs the state to ensure that any person whose rights have been violated "shall have an effective remedy, notwithstanding that the violation has been committed in an official capacity." While Article 4(1) permits State Parties to take measures derogating from their obligations in the time of national emergency, Article 4(3) lays down that any such derogation must be reported to other State Parties through the UN Secretary-General. The Indian government has made no such communication. In any case, as an expert in the UN Human Rights Committee pointed out, such an emergency must be a temporary measure, and cannot be in operation for decades, as this Act has been in various parts of India.
Further, Article 4(2) stipulates that no derogation from certain key Articles, including Article 6 [right to life], may be made under this provision. But Section 4 of the Act, as we have seen above, empowers firing, which may result in death, merely based on a relatively junior officer's opinion or suspicion. This violates Article 6(1) of the Covenant which inter alia states that, "No one shall be arbitrarily deprived of his life." Under international law, once India has signed this Covenant, its provisions can even supersede the Constitution. In other words, the Armed Forces [Special Powers] Act cannot be upheld as legal and valid on the ground that it is consistent with the Constitution, even if it violates the Covenant.
In any case, human rights activists have consistently held that the Act is also violative of the Constitution. It, like TADA, violates Articles 14 and 21 of the Fundamental Rights, and is a derogation from Entry 1, List II of the Seventh Schedule. Article 13 which voids all laws inconsistent with the Fundamental Rights is infringed. Article 19, which protects freedoms of speech and expression, of peaceful assembly, and the right to form associations and unions, is also violated. Though the Supreme Court has upheld the Act, after laying down detailed guidelines to curb misuse, it should be remembered that the apex court also upheld TADA, to be overruled later by parliament.
The Group is of the firm opinion that the continued misuse of this law, and the exemption from prosecution it provides to military personnel, is a major source of human rights violations by army formations in the State.
Blood & Death in Jammu & Kashmir
Human rights activists and others often argue, that since the militants do not accept either the Indian Constitution or Indian law, these do not apply to them, and as such their human rights violations, as it were, cannot be criticised, as violations as such, since they have not violated anything they themselves have accepted as law, or as a valid standard. In this vein, it is argued that violations by the militants, or individual terrorism, should not be the subject of study, since Indian law applies only to security forces and the Indian state, who are instead guilty of state terrorism. This betrays an ignorance of international humanitarian law all of which applies to all combatants, militant or statist. The international legal instruments including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Geneva Conventions, etc., which India has signed, apply to both the Indian forces as well as to the militants.
Militants, and the Pakistan government, have argued that in the Kashmir case, the special concept of 'jihad' or holy war applies, which supersedes all international humanitarian law, not to speak of Indian law. Pakistan, an Islamic state, does not itself govern its own international relations on the basis of such a controversial reading of Islamic law, but on the basis of internationally accepted secular international law. Islamic scholars have also argued, that this interpretation of 'jihad' itself is not in consonance with either Prophet Mohammed's own life or preachings. The Prophet's life was marked by a reverence for peace and mercy towards His enemies. Be that as it may, in a world of myriad religions and ways of life, no one religious interpretation can substitute for internationally accepted standards and law. The Indian state may argue, as it does, that its own excesses are justified or at least excusable, because it fights foreign 'terrorists.' This argument too is specious, and is a violation of international humanitarian law. State terrorism is neither a legal nor humane response to religiously fundamentalist individual terrorism.
Thus in this report, as indicated at the outset, the Group has criticised human rights violations by both sides, security forces and militants alike. This is, unfortunately, unusual, but for the reasons cited above, in keeping with the core, internationally accepted precepts of human rights and impartial judgement.
Since 1990, there has been substantial militant activity in the State. According to police sources, there were 5,153 incidents of violence and other militant activities in that year. These rose sharply to 7,315 incidents in 1992, and amounted to 7987, 8784, 8731 and 6633 incidents in 1993, 1994, 1995 and 1996 respectively. After this, with an elected National Conference government taking office in October 1996, militant activity declined to 4702, 4150, and 4326 incidents in 1997, 1998 and 1999 respectively. In the 10 year period from January 1990 to December 1999, there were a total of 63,387 incidents involving the militants, signifying a high level of activity, which was however, significantly reduced after 1996.
The militants also targeted political activists. In 1996, as many as 61 were killed, of which 36 were from the NC, and 19 from the Congress. In 1997, 1998, and 1999, 57, 52, and 47 political activists, of which 121 were from the NC, and 18 were from the Congress, were killed by militants. The plan by the militants was obviously to discourage 'over-ground' political activity, particularly by the major parties: the NC and the Congress which bore the brunt of the killings. But the killing of 217 political activists over a period of just 4 years, is a premeditated assault on legitimate political activity and is as such a clearly politically motivated human rights atrocity, allegedly planned by the ISI and other agencies across the border.
The pattern of destruction of property by militants was similar to the total incidents of militant activity. For instance, in 1990, according to official sources, as many as 802 public buildings including 129 schools, 172 bridges and 501 other buildings, were destroyed or extensively damaged allegedly by militants. By 1991, this total plummeted to 93, going up by 1994 to 337. By 1996, public buildings destroyed came down to 122, falling further to only 29 in both 1997 and 1998, to a low of 18 in 1999. In 1996, 602 private buildings were destroyed, of which 432 were stated to belong to the majority community, and 170 to the minority community. By 1997, this came down to a total of 437 private buildings of which 303 and 134 were owned by the majority and minority communities, respectively. In 1998, the total dropped to 273, of which 189 and 84 were majority and minority community owned, respectively. There was a slight increase in 1998, the total going up to 284, of which 233 and 51 were buildings belonging to the majority and minority communities respectively.
Human rights activists question these figures arguing that some of this damage is collateral damage, caused by the security forces in the course of their counter insurgency operations. Even if this was so, and these would be human rights violations, systematically deflated figures would still indicate the widespread damage to public and private property by militant activity, causing grave damage and grief to the civilian population.
Other attacks by militants include the use of explosions through mines, IEDs using RDX, and so on. There were as many as 1280 such attacks in 1990, reduced to 358 in 1996, 255 in 1997, 264 in 1998, and 293 in 1999.
